Patrick Joseph Borchers (Creighton University School of Law) has posted Extending Federal Rule of Civil Procedure 4(K)(2): A Way to (Partially) Clean Up the Personal Jurisdiction Mess (American University Law Review, Vol. 67, No. 2, 2017) on SSRN. Here is the abstract:
The Supreme Court’s personal jurisdiction jurisprudence has become increasingly constricted and remains unclear on many crucial questions. However, it appears that the Court will not rethink its basic approach to determining whether the defendant has minimum contacts with the forum state. The Supreme Court has heard five cases concerning personal jurisdiction since 2011, and it has decided all five in favor of defendants. As a result, U.S. plaintiffs can be left without a U.S. forum, even though they are injured in the United States by foreign corporations and the suits arise from the foreign corporations’ purposeful efforts to benefit from the U.S. market. Moreover, other important issues, such as the significance of virtual contacts, lie unresolved. This Article proposes a practicable solution to the worst of the problems: the lack of a U.S. forum for domestic plaintiffs injured in the United States by foreign defendants. The proposed solution is to extend Federal Rule of Civil Procedure 4(k)(2) — which in its current form allows for nationwide personal jurisdiction in federal question cases in which where the plaintiff would not have another U.S. forum — to include diversity and alienage cases. While this solution would not resolve all difficult issues, it would work to the advantage of U.S. plaintiffs by ensuring a local forum and benefit U.S. defendants by leveling the playing field between them and their foreign counterparts. This Article then considers whether the Rules Enabling Act would authorize an extension of Federal Rule 4(k)(2) and if it would be constitutional. The Article concludes that an extended Rule 4(k)(2) would survive challenges under both the Rules Enabling Act and the Constitution.